Bideena Pty Ltd v Growth Super Fund Pty Ltd (No 2) [2017] FCA 327

Bideena Pty Ltd v Growth Super Fund Pty Ltd (No 2) [2017] FCA 327

The interlocutory process had not been heard on the merits and was resolved by negotiated undertakings rather than by capitulation or surrender. Although Bideena's failure to notify the defendants or seek undertakings before filing was not prudent and was not a practice to be encouraged, the Court could not conclude on the evidence that this conduct was so unreasonable as to justify ordering Bideena to pay the defendants' costs, make the defendants' costs their costs in the cause, or order indemnity costs. Because the unresolved issue concerned costs of an interlocutory process in a proceeding not yet finally determined, the appropriate order was that the costs be costs in the cause.

Jurisdiction
Australia
Judgment Date
31 March 2017
Procedural Posture
Costs Decision in Commercial and Corporations Proceeding Concerning an Interlocutory Process / After Substantive Aspects of the Interlocutory Process Were Resolved by Undertakings; Determination of Costs of the Interlocutory Process
Outcome
Costs of the interlocutory process filed by Bideena on 29 March 2016 were ordered to be costs in the cause as between Bideena and the second, third, fourth and fifth defendants.
Legal Topics
['costs of Settled Interlocutory Process' 'costs in the Cause' 'no Order as to Costs' 'indemnity Costs' 'reasonableness of Conduct' 'freezing Order Undertakings' 'overarching Purpose']
['costs' 'civil Procedure' 'corporations and Corporate Insolvency'] ['costs of Settled Interlocutory Process' 'costs in the Cause' 'no Order as to Costs' 'indemnity Costs' 'reasonableness of Conduct' 'freezing Order Undertakings' 'overarching Purpose']

Case Brief

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Procedural Posture

Costs Decision in Commercial and Corporations Proceeding Concerning an Interlocutory Process / After Substantive Aspects of the Interlocutory Process Were Resolved by Undertakings; Determination of Costs of the Interlocutory Process

Legal Issues

  1. 1 ['Whether Bideena acted unreasonably by filing and serving the interlocutory process without first notifying the defendants or seeking undertakings.' 'Whether the resolution by undertakings was a compromise or a capitulation by Bideena.' "Whether there should be no order as to costs, costs in the cause, the defendants' costs in the cause, or an order that Bideena pay the defendants' costs." "Whether the ARF Parties' costs should be paid on an indemnity basis."]

Ratio Decidendi

The interlocutory process had not been heard on the merits and was resolved by negotiated undertakings rather than by capitulation or surrender. Although Bideena's failure to notify the defendants or seek undertakings before filing was not prudent and was not a practice to be encouraged, the Court could not conclude on the evidence that this conduct was so unreasonable as to justify ordering Bideena to pay the defendants' costs, make the defendants' costs their costs in the cause, or order indemnity costs. Because the unresolved issue concerned costs of an interlocutory process in a proceeding not yet finally determined, the appropriate order was that the costs be costs in the cause.

Court Disposition

Costs of the interlocutory process filed by Bideena on 29 March 2016 were ordered to be costs in the cause as between Bideena and the second, third, fourth and fifth defendants.

Orders

  • ['As between the plaintiff and the second, third and fourth defendants the costs of the interlocutory process filed by the plaintiff on 29 March 2016 be costs in the cause.' 'As between the plaintiff and the fifth defendant the costs of the interlocutory process filed by the plaintiff on 29 March 2016 be costs in...